Sometimes I’m really slow on the uptake. I mean face-palm, well-duh slow. Sometimes it takes a knock to the head to make me put all the pieces together into one big gigantic lump.

The knock on the head came earlier in the week, as I read various documents sent to me for my business, and documents sent by other writers asking for advice. Dean Wesley Smith and I often look at contracts, agreements, and other legal documents for writers—not to give them legal advice because we can’t. We’re not lawyers, for one thing. But we have seen about 10,000 publishing contracts and other documents in our 25 years together, and we know how publishing works. So we will tell writers what they have in general, and what kind of help to hire (if need be). We are the first to admit if something is beyond us, and we often recommend the services of an intellectual properties attorney.

We used to recommend agents, but we slowly stopped doing that. Some of it was simple: we didn’t want to endorse any one we weren’t intimately familiar with. But it became more complex than that. Some of our agenting friends had left the business. Others had moved to companies that had rather unseemly business practices, and still others had morphed their agenting business into something unrecognizable.

Rather than walk through the thicket of ethics, friendships, business partnerships, and individual monetary policy, we just stopped recommending any particular agent. Over time, we stopped recommending agents at all.

During that same period of time, we saw a lot of publishing contracts that were…dicey…at best. We figured that because the contracts were for newer writers, the contract itself was a lower level of contract.

Let me explain.

When I worked for a textbook publishing company in the early 1980s, I was shocked to discover that the company had wall-sized file drawer filled with contracts. The contracts were marked 1-500 (or whatever the upper number was). When a deal got completed, the editor would tell me—the lowly secretary—to pull a contract by number and fill in the blanks with the writer’s information.

Because I was efficient, young and annoying, I usually finished my work before all the other secretaries. Because I was learning the business, I spent the rest of my time reading. After I had read every book we were going to publish that season, I started reading contracts.

And I got my biggest education ever.

Because those contracts were all for the same kind of book. The only difference was the level of clout that the writer had. The more established writers got contracts in the middle numbers (100-300). The bestselling writers or the ones whom the company really, really, really wanted, got the higher level contracts (301-450). I didn’t know anyone who got contract 500. But I knew a lot of writers who got contracts 20-99.

Only one writer got contract #1. And that contract was its own particular version of hell. The only reason I knew about it was because this poor woman had signed the contract with the company ten years before I started there. She was writing an education textbook. (Let’s not dwell on the irony here.) Every time new information came out, or the education department in the publishing house changed editors, or someone else published a similar book, this poor woman had to revise her unpublished manuscript.

In ten years, she had revised it ten times. For the smallest advance the company gave—which was, I believe, $1,000, paid ten years before. The newly revised manuscript came in just before the editor who hired me left the company. His replacement took one look at this cobbled together thing, no longer readable (if it ever was), and asked, quite sensibly, “Why are we spending company time on this? It’s unpublishable.”

He drafted a letter which I typed, rejecting the manuscript. Then, per terms of this woman’s contract, he asked for the advance back.

Me, naïve little writer that I was, I argued that she shouldn’t have to repay her advance. And to be perfectly fair, I think the man who hired me would have ignored that contract clause. His replacement was a 20-something salesman who had no editorial experience at all, and who needed to make his bones with the company.

He took one look at me, and laughed. “It’s in her contract,” he said. “If we reject the final manuscript, she has to repay the advance.”

“But she rewrote it ten times,” I said.

He shrugged, told me it was none of my business, and sent the letter. I quit a few weeks later—not, I should say, in a huff because of this woman’s treatment. I understood contracts, even then. But because I was bored. I’d run out of contracts to read.

I tell you this story partly to show how important contracts are, and partly because things have always been like this in publishing, but mostly to explain why Dean and I thought the contract terms crossing our desks had more to do with the age, experience, and clout of the writers who were asking for our help than with changes in the industry.

At the same time, publishing was going through other changes. Conglomerates bought out many of the independent large publishers, merging and merging and merging. The publishers became part of a multi-media environment, and they were only a branch of some conglomerate somewhere that had fingers in much larger pies.

At some time in this period, editors lost their ability to buy books. When I came into the business, an editor could buy a book if the advance was beneath a certain amount of money—say, $50,000. Over that, and the editor had to consult with the publisher. Over mid-six figures, and both the editor and publisher would have to consult with the head of sales.

By the turn of the century, that changed as well. Editors had to consult with an executive editor and the sales department before presenting a book to the publisher for possible purchase. And even then, the publisher and the head of sales had to agree that the book was worth the miniscule advance the editor was going to pay for the book.

I was noticing a few other things at the time, but not putting them together because my own career had hit a crisis point. My agent and I would negotiate a contract. Then we’d get the contract, and we’d have to remind the publisher that we had changed certain terms. The terms would get changed back.

Or we’d negotiate a contract, then sell a second book six months later on the same terms. Only when the contract arrived, it would be a completely different document. While the terms we had explicitly discussed would be the same as the ones we negotiated, the other terms, from the warranties to the deep discounts, would be extremely different.

Ever since I worked for that textbook publishing company, I read contracts with a ruler in hand, going over the contract line by line. And if the contract had to be compared to a previous contract, I’d have the contracts side by side as I went over them.

(One of the many agents I fired in this time period was stunned to hear I did that. Apparently this agent hadn’t thought of that technique and was happy and surprised that I was so smart. Naw. I was pretty dumb to hire a person who didn’t understand each word in the contract and how contracts worked.)

As I went over those contracts, I’d find the slightest changes, sometimes just one or two words. But those words would add up to things that benefited the publisher immensely and often negated other things in my contract.

After I had switched agents, I forced one publishing company to redo a contract completely. We had made our deal “on the same terms as the previous contract” and yet when the contract arrived 75% of it was different. Why? I had left an agency that also represented this publishing house’s largest bestseller, and moved to an agency whose largest bestseller was with a different publisher.

My new agent told me not to fight it; they had a different boilerplate with the publisher. But the publisher’s representative, my editor, had agreed to the same terms, and had done so in an e-mail, which constituted “in writing.” So I stuck to my guns, and the contract was revised in my favor except for one thing.

The publisher insisted on inserting the fact that the changes to the terms were not a precedent for my new agency. In other words, the changes I got could benefit no other writer. Just me.

A few years later, an agent friend of mine with a really big agency told me in confidence that the days of influential agencies was over. “We can’t get our own boilerplate any more,” he said, “except for our biggest sellers.”

What that meant is this: in the 1990s and probably before (but I wasn’t working with New York houses before, so I’m not sure), an agency would negotiate general contract terms with a publisher, and those terms would remain consistent for all of the agency’s writers, not just its bestsellers. Sure, the bestsellers got more money and escalators and other perks. But the things that were in every contract, from the discounts to the warranties to basket-accounting practices, would be the same even for the lowliest of writers.

But, apparently, no longer.

By the way, that agent, whom I had known for 20 years at that point, was answering a question for me. I was thinking of getting a new agent (yet again) and I asked him what his super-famous really big agency could do for me that a smaller agent couldn’t. Maybe because he’d had a few drinks, maybe because he is a very savvy man who has a finger on the pulse of publishing’s future, maybe because we were friends, he told me that he couldn’t do as much for his writers as he could have ten years before.

Clout counted for less and less in this business, he said. And since his business was all about clout, he was quite morose about it.

Then he told me stories about canceled contracts and misfired deals, stories like the ones I just told you, only these had happened to big name writers—writers with more clout than I ever had, more clout than that poor textbook writer could ever hope to have had. And the agent said he could do nothing about it.

Now, honestly, I’m not that shocked that publishers take advantage of writers. Writers and publishers enter into a business relationship, and business relationships can be adversarial. Personalities factor in, but so do the structure of companies. The smaller the company, the more likely it is to be on less solid ground financially, but the more likely it is to be a friendly place to work with.

Writers have always (usually?) been unarmed as they went into these business relationships with publishers. The writers would hire advocates to take care of them, to handle the adversarial part. Early on in my career, I hired an agent not just because I believed the agent knew more about publishing and publishing contracts than I did (and at the time, he did), but also to stand up for me when the time came, to fight for my needs and wants, to be my advocate.

Slowly, over time, agents stopped advocating for writers, and instead, started advocating for their agencies. Again, I noted the change, but believed it was only a few agencies, working on the Hollywood model. In fact, the agencies that pioneered this behavior came from Hollywood, and then branched into publishing as a side business.

I knew that many agents had forgotten who they worked for when the agent started refusing to mail books that “weren’t good enough” and refused to do things in their clients’ best interest because it “might hurt our other clients.” I always felt those were firing offenses, but a lot of writers put up with those things and more. And, it seemed, the behavior got worse, which I blamed mostly on the cutbacks in publishing. Those cutbacks forced a lot of laid-off editors into agenting, and editors didn’t know business nor did they know how to keep their hands off a perfectly fine manuscript.

But I was wrong.

I hadn’t realized until a few months ago that the adversarial relationship that sometimes existed between writer and publisher had moved into the agent/author relationship.

My first glimmer came when I looked at a former student’s agency agreement. Honestly, when the student contacted me to look over a contract clause, I thought the clause was in a publishing contract—at least that’s how it read in the e-mail. Then I saw the entire agreement and realized who had issued it.

The agreement called for the agent to have the right to represent the writer’s work in all forms for the duration of the copyright of the work, even if the relationship between the agent and the writer was terminated. I blinked, damn near swallowed my tongue, and told the writer not to sign the agreement. Even though the agency was a reputable one, this clause was horrible.

Too late, though. The writer had signed the agreement a year before I looked at it, and something had happened between writer and agent to call that clause into question.

For the life of me, I couldn’t get that silly writer to understand that she was now trying to close the barn door after the horses had been turned into dog meat and eaten.

I made a mental note: avoid that agency. Tell writers not to sign the agency agreement, and if the agency didn’t like it, then the writers should not be repped by the agency. That simple.

I thought it a blip.

Until another student sent me an agreement from an agency that used to represent me. And there it was: that horrible clause. Again. When I had been with that agency, I hadn’t signed any agreement at all. One didn’t exist.

Then—blink, blink—a “negotiated” agreement with a Hollywood producer, negotiated by a writer friend’s agent. Fortunately, the writer asked Dean and me to look over this agreement the moment it arrived.

This agreement—I kid you not—gave the producer all rights in that particular story for $1. In perpetuity and in the entire universe. The worst contract I had ever seen.

I actually compared the agent’s address with the producer’s address, thinking they were the same person. They were not. But if I had to bet on it, I would wager that the “agent” was in some kind of collusion with that producer. I know of at least one agent who, fortunately, is no longer in business, who would sell books to Hollywood for his writers, get them a nice fat purchase price, and get an even fatter producing fee (plus points) for himself. He made a percentage off his writer, and then a six-to-seven-figure fee over and above it as producer. And everyone said he was reputable. Yeah, right.

Agency agreements have become as draconian as publishing contracts—maybe even more so. Because one agency agreement I saw stated that the agency could negotiate for the writer, that the writer could not reasonably refuse the terms negotiated, nor could the writer easily terminate the agreement. Worse, that agreement, in a very sneaky manner, gave the agent the power of attorney over any contract negotiated for that writer.

I just about fell out of my chair.

What happened to the agent being a writer’s advocate? What happened to hiring a consultant to negotiate for the writer?

If a writer’s relationship with a publisher is adversarial, and the person the writer hires has decided to take it upon himself to put his company ahead of the writer’s business, then who speaks for the writer?

Dean made me laugh out loud in the middle of one of our planning lunches when he put it succinctly.

He said, “What do writers need? They need to grow a pair.”

He’s exactly right.

In this new digital age, content is king. There are a million venues for selling things, but all those venues need something to sell. The people who provide the content are the ones who, theoretically, should be in charge of this world.

Only too often, content providers are “artists” — be they musicians, photographers, or writers. And “artists” were raised to be mathematically challenged, not to bother their pretty little heads about business, to trust someone else to take care of them.

And for a while, someone else did. Agents might have skimmed a bit off the top, but they knew their jobs as advocates for their writers. My first two agents contacted me, selling their services to me, telling me how they could help my business which—they were clear—was my business, and they would simply help me make more money at it.

Three years ago, when I was talking to my agent friend, several other agents approached me, all of them telling me how, with their help, I could be a better writer so I could get better contracts.

So…I should take lessons from someone who never wrote anything, was afraid to market half my stuff, because they “knew” better? Seriously? Better than a multiaward winning, bestselling writer, with more than 90 novels to her name? I actually laughed at one of those agents and asked those questions. The agent looked surly and said, “You’re not doing that well.” Which pissed me off. I said, “You don’t have any clients who are doing any better.”

And I walked away.

I would have loved to have seen that agent’s agency agreement. I bet it tried to hang onto a piece of every literary property the agent sold. Because I know for a fact that agent isn’t an author’s advocate. I’m not sure there are many advocates left.

As Dean and I worked on this class, I told Dean we had mistitled it. It should be called “The Writer’s Self Defense Class.” We might actually use that title next year. Because everyone wants a piece of the content provider without paying the provider a dime—or, at least, not paying the provider more than a single dollar.

The real slap on the head came for me as I was negotiating two of my own contracts this past month. In one case, the other party was giving me everything I asked for, which was so unusual, I couldn’t believe it. In another, the other party wanted to change terms of an existing contract, and was trying sneaky methods of doing so.

I was comfortable with the sneak. I expected it. I was geared up for it. The nice one made me nervous. I kept wondering when the other shoe would drop.

I wondered how I had become so cynical, and I realized it had come from all the sideways stuff. The advocates who no longer advocate, the royalty statements controversy that we’ve been dealing with in previous weeks, the changes in negotiated contracts. (I’ve had to send back two different contracts at the signature stage because the other party had snuck in changes after the negotiations were (theoretically) done.)

I’ve been doing the contractual stuff now for thirty years. Not well, in the early years, but better than most writers do now. I’m defended. Hell, I’m a fortified castle on a remote island. Most writers, on the other hand, haven’t got a clue about what faces them across a negotiating table. And those writers may have “advocates” sitting beside them who are stealing money from the writers’ pockets before the negotiation even begins.

It terrifies me. It really does. It’s one of the reasons I write these columns. But it’s one thing for me to tell writers to learn business; it’s another for them to actually do it.

I’m afraid if they don’t, however, they’re going to be screwed sideways, upside down, and backwards. Because they are such innocents they often don’t realize that the “advocates” they’ve hired are bigger dangers than the companies they’re defending against.

And given a lot of publishing practices these days, that’s saying something.

Dean often says that he’s not anti-agent or anti-publisher, he’s anti-stupid writer. But the tricks that these “advocates” and publishers are pulling are things that would trip up intelligent writers as well. One of the contracts I read recently was subtle in its nastiness. You had to understand things that I had no idea even existed when I was reading those textbook contracts all those years ago.

The business is changing as we have discussed in these posts for some time now. And as the business changes, publishers and agents are running scared. They’re not sure where they will fit in. So they’re trying to reserve as big a piece of the content pie as they possibly can for themselves—at the expense of the content creators. The writers.

One other thing: In the past three weeks, I have gotten—unbidden—two contract addendums from two of my publishers. Both of these addendums wanted to change the e-publishing rights clauses in my contract. Both of these addendums were awful for me as a writer. One even gave the publisher the right to condense, change, alter, or add to my existing work.

I refused to sign both. I later talked to several of my friends who had gotten similar addendums. My friends’ advocates, to a person, had recommended taking the deal. I have no idea why. It harmed the writer terribly.

One of those publishers actually told me I shouldn’t refuse because other writers are doing it. I wanted to sound like every parent on the planet: Just because the other kids jump off a cliff doesn’t mean I have to.

But apparently a lot of writers are—with the help of people they’re paying to advise them.

@Willow – I can’t say for sure, but you could try the Absolute Write Water Cooler. Just go the Bewares and Backgrounds Check sub-board or do a search. I have a vague recollection of there being a Dorchester thread; not sure if it’ll have the details you’re looking for, but it might be a good place to start.

@Melissa – Thanks for that link. Interesting, esp. when the former head of Borders is screaming about a book coming out that will take seven(!) months to be printed. Duh. That’s a fast track in the trad world. (Kinda makes you wonder what he was doing when he was running the joint.)

@Kris – FYI, there was a guy in the comments (Michael, I think) who left a paranoid and self dissing post. I directed him to your and Dean’s blogs. I hope he clicks through the links. 🙂

I’m wondering if there’s any kind of author forum that discusses these kinds of issues, especially in light of the Dorchester mess. I may or may not be seeking legal advice myself in the near future regarding rights reversion with a different publisher, and I’d love to know what others’ experiences have been.

“Publishers selling direct to readers, printers folding and more agents becoming publishers are some of the implications of digital, claims former Borders chairman Luke Johnson.
In his weekly column for the Financial Times, Johnson claims digital may transform book publishing more than any other industry. He said: “There will surely be material deflation in the price of e-books over time. The inevitable disappearance of the vast majority of bookshops will remove a main marketing channel and will seriously undermine the power of publishers.”

This is the same thing I’ve been saying on my blog – so we’ll see which ones can adapt to these changes and which ones can’t. Personally, I kind of believe that the only ones who will survive are those who adopt the Lucky Bat model of publishing.

Lucky Bat is wonderful. I’m sending them a book to scan for me today. Lucky Bat, for those of you who don’t know, charges fees and not percentages. They’re among the good guys here. And great people too.

[…] So more than likely that includes the salary of the person doing the work, the cover art, and so on and so on. You get nothing. And that’s if the agent is actually being fair to you. We are talking about agents here, remember. (For a lesson on agents, see Kristine Kathryn Rusch’s blog last week.) […]

We are so old fashioned, JB, that we outline our seminars on yellow legal paper. (I’m not kidding.) We started that way and we keep doing it. Some of what we say isn’t for public consumption, so we decided long ago not to do a video of the seminars. We might have to change our minds, but we won’t any time soon. (We might consider an all-expenses paid trip to the UK, however, to teach this through some writer’s group, however. Just sayin’)

Thanks for a wonderful eyeopener of an article. I wonder if Dean and yourself might think about publishing the content of your seminar: “Self Defense for Writers”. I live in Ireland, so I won’t ever get to hear it. Thanks again.

Kris is right on. I used as service, (Lucky Bat Books) because I didn’t know all the technical in and outs of self pub (working on learning them) . If you’re unsure how to do all the tech stuff then hire someone like I did for a flat fee. Stay away from agents who offer 50/50 of NET proceeds.

LBB gets ZERO from my royalties. I pay them once and that’s it. If you did the numbers on what an agent would get forever from their portion of these 50/50 deals you would be shocked, and would they also be able to deducted expenses forever to arrive at NET? Check out Dean’s blog for more on this.

“Sadly, there are a lot of red flags in her post. All of them came from people giving her advice, and being inexperienced with traditional publishing, she believed them. Now she’ll go from making 70% on her books to making less than 15%–if the books remain a success. I’ve been thinking about it though, and as savvy as I was about some things in my early twenties, I would probably have made some of the same choices she did, believing that other people with more experience knew better than I did. That’s probably what she thinks too. Ah, well. That’s the old school of hard knocks coming at her….”

You know what is funny, Kris? I just realized this. You said in your Changing Times blogs that it was only a month or so ago, you would have given a new writer the advice of going with a traditional publisher. Now that the market is changing so rapidly and in light of the new evidence about the under-reporting of book sales, that is not the case any longer. It’s amazing how quickly things have changed this year.

Unbelievable. Luckily, my first attempt at this novel was unsellable. I’ve taken the time to learn a little about the publishing industry while I’m rewriting it. I was so sure that going the way of ‘traditional’ publishing was the best thing for me to do. Now, I’m not so sure. Glad I found this and thank you for writing it!

Christal, I have it somewhere on my blog, but it’s easier to look at Dean’s. We haven’t called it Writer Self Defense. This upcoming weekend, he’s teaching “How To Be Your Own Literary Agent,” which I think should be called Writer Self Defense. And the following weekend is Secrets of Making A Living, which is more in-depth: http://www.deanwesleysmith.com/?page_id=50

Thanks! That’s exactly what I thought. There was something I read that Barry Eisler and Joe Konrath said. It was a comment about how long it takes traditional publishers to make and market books. A contract can span several years and the question is: Will there be any bookstores left in next 3, 4, 5 years? Signing a book deal now is a risky business because the industry is changing so rapidly.

There was another thing that caught my attention on her blog. She mentioned that the price of her books would be increasing when St. Martin’s publishes them but there is still a few months left in which to buy them at the current indie prices. The reason, in her words, is “because they are a major company with overhead costs.” This should really raise a red flag for her … for anyone. If big publishers can’t afford to sell books at the same prices as indie authors then how much longer are they going to be able to compete in this market? Especially now that the general public is becoming more and more familiar with e-books and reading works by indie authors. And especially now that the general public is worried about jobs and is looking for better deals in everything they buy.

Sadly, there are a lot of red flags in her post. All of them came from people giving her advice, and being inexperienced with traditional publishing, she believed them. Now she’ll go from making 70% on her books to making less than 15%–if the books remain a success. I’ve been thinking about it though, and as savvy as I was about some things in my early twenties, I would probably have made some of the same choices she did, believing that other people with more experience knew better than I did. That’s probably what she thinks too. Ah, well. That’s the old school of hard knocks coming at her….

Kris, when my wife finished her first novel in the mid-nineties, I began marketing it for her, first to agents, eventually directly to publishers as it became obvious that agents were nothing but an expensive nuisance. I was appalled at how bizarre and upside down the publishing business was. Folks like you and Dean have memories of a world that was somewhat different, but when agents wanted to interview/interrogate my wife rather than read her manuscript, and their first question before reading was, “Would you be willing to change your manuscript?” alarm bells started going off. Her answer was always, “If you can make a good case that something needs to be changed, sure.” That usually ended the discussion, and we concluded that they wanted only dupes who surrendered their integrity going in. Thank God she has a level head and was not lured into stupid deals.

Sharon right away understood that the 15% for the length of the copyright was a very bad deal even if the agent moved mountains. We made acquaintance with a respected IP lawyer and I talked directly to publishers. The publishers came back with “The manuscript is too long for a first time writer.” It’s 180K words, and you would be very hard pressed to cut 10K or even 5K words out of it as some of them even admitted. At that point we’d reached a stalemate. I was well aware of the futility of self-publishing a novel, so it sat while she dealt with serious health problems.

When I started seeing Joe Konrath’s mind begin to change about Amazon and indie publishing, I filed it away as a possibility. When Amazon refused to surrender in the publisher wars and counter-attacked with the 70% royalty for ebooks, we finally jumped. Not a success yet, but she owns all her rights, and the books are for sale and will remain so while we put up more of her work.

My concern now is for young writers who got into the business in the last few years. One we met at a few local cons is happy where he’s at, but I doubt he’ll ever see any rights to the several mid-list novels he’s published in the last few years, and when dead tree books become the collectible antiques they will be in a few years, he’ll have only electronic books with several layers of leeches hanging on and sucking the money out of his content for the rest of his career.

I only hope the current moment with independent ebooks lasts with the creators in control if they so choose. And as you note, it’s important for all of us that most of them so choose, because if enough don’t, we’ll be once again in the back of the driver-less bus as some accountant for Amazon realizes how easy it is to take advantage of writers.

I don’t think Amazon cares about writers. Amazon cares about product, no matter who puts it up. So it’ll be up to others (agents/publishers/new folk) to scam the writer. And that’s already happening. Sadly.

If y’all haven’t done it yet, read the link from Reziac below on music industry accounting. This is–exactly–where traditional publishing is heading.

I was finally able to get to posting links to your blogs this weekend on my website! The more this information gets around, the more educated writers will be.

There was something I read on Amanda Hocking’s blog that bothered me. She is selling the rights to her Trylle trilogy to St. Martin’s and one of the reasons she lists is because she believes that a movie studio won’t green light the project unless there is a big publisher behind it. I just don’t think this is true. Her story and its fan base should be good enough for that. But then again, you are more experienced with this sort of thing, so I thought I would ask you.

In any case, I hope she isn’t selling them her e-rights indefinitely …

Sadly, Melissa, there’s a lot in Amanda Hocking’s most recent post that’s filled with myths, and is just plain wrong. And honestly, I can hear the words coming out of an advisor’s mouth. (I almost said her agent, but I don’t know that for a fact.) But someone has given her wrong-headed information, and she’s believing it. From the “small part of the market” –which is going to grow, not decline–to the fact she’s doing this for a movie that might well never get made, no matter who is publishing the book, everything she did makes me sad. Including selling the e-rights. I couldn’t believe that. (sigh) But it’s her decision, and her career.

FYI, everyone, just because you have a Hollywood option or even a flat-out production deal doesn’t mean that the movie will ever, ever get made. Jack Finney’s Time After Time has been in continual option since 1971, and no one has ever made a movie from it. But the estate is getting nice money….

I have not had one thing published yet, and I am glad I read this before it became to late. I am part of a writer’s forum and I am noticing a lot of new, and experienced, writers are taking a lean to self publishing. With the ability to market on Amazon and more, it seems appealing to me.

I am sure this, coupled with the e-reader revolution, is making publishers a bit scared.

It’s my hope not to self publish, but at the same time the craze is catching on and it may soon become the new face of writing. It does allows the artist to maintain control.

Thanks for this article, it is handy and I am glad I was referred to it.

As a fledgling writer working on her first novel, I wanted to tell you how much I’ve appreciated your publishing series of articles. I’ve read them all and I feel very lucky to have found this source of information before I have any opportunities to make the mistakes inexperienced writers tend to make. I’ve learned so much from you and now I feel better prepared to tackle the world of publishing when my novel is completed. Having been enlightened, however, I feel so bad when I read blog posts by my fellow aspiring authors who are slaving over endless rewrites or desperately querying. I want to share my new found knowledge, but I get the feeling they’re much too blinded by the publishing myths they’ve been fed for years to hear the truth. Still, it’s reaching some of us. Keep shining that light in the darkness!

Great post, Kris. I think my eyebrows flew off my face when I read all of the shenanigans you’ve listed going on. Talk about a rights grab to an insane, suicidal degree, and even more amazingly, writers may sign up for it in droves, like lemmings.

Surprisingly enough, many people in small businesses that aren’t in publishing/writing *also* sign plenty of contracts “as-is” instead of trying to negotiate. When I, (not a lawyer, thank goodness!) get them to tweak some of the terms, I either get a horrified “but what if they say no?” or they get surprised when the other party is fully willing and ready to negotiate.

I second (third?) the wish that lower education taught useful subjects like money management, basic contracts, business skills, and so on!

[…] Kristine Kathryn Rusch on what agents and agencies want to do to writers these days. Via Sea Wasp. “This agreement—I kid you not—gave the producer all rights in that particular story for $1. In perpetuity and in the entire universe. The worst contract I had ever seen.” […]

It has always baffled me why the basics of accounting, contract law, personal finance are not taught in High Schools

It was at my high school, but as an option instead of band or whatever, and mainly aimed at kids who planned to join the workforce after highschool rather than going on to college. I am very, very thankful that due to a registration screw up when I started high school I ended up with that track (typing, bookkeeping, business law and business finance, over four years) instead of music. Infinitely more useful.

A few years ago, I had the good fortune of reading a book just after having had several dodgy experiences with well-respected agents–they weren’t exactly unpleasant, but there were things I was running into that didn’t pass the sniff test. For example, the agents all presented themselves as a business partner rather than an outside sales force or negotiator (which, from my time in the movie business and as a small businessman, is exactly what I understood the role of agent to be).

I was also told by three of them–all of whom I know to be nice, decent folks in their off-hours–that while my writing was well above professional par, it didn’t quite jive with the zeitgeist, and that if I wanted them to be able to sell it, they’d require some rewrites. And, without exception, the rewrites insisted upon were ones that would bring me in line with the agent’s “brand,” as it were–and utterly ruin the appeal that my stories have for my core audience.

After one of these, I was reminded of some shark experiences I had in Hollywood–except the agent in question wasn’t a shark in any traditional sense. After two, I started to wonder if publishing was some sort of strange world with its own rules. After three, I began to wonder why the hell anyone got an agent in the first place.

About this time, I read Freakanomics (a must read), wherein there’s a chapter about Real Estate Agents and how their incentive structure pushes them to act contrary to the best interest of their clients in predictable, quantifiable ways. And as I read it, I recognized *exactly* the pattern of incentives and contrary-to-client-interest behaviors I’d been seeing with the agents I was dancing with (and that I’d heard about through other author friends). If you’re an author (or any businessperson who hires on contractors), you must read that chapter. After reading it, I walked around for several days, completely stunned that nobody seemed to have cottoned on to the con game inherent in the agent arrangement (not that all agents in all fields are con-artists, but the lack of transparency and thought about incentives turns the arrangement into a con game by default).

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On the other matter, dovetailing with Passive Guy’s post on contracts (that one deserves a few thousand links of its own), I’ve run into a one-level-more-basic obstruction with newbies just learning contracts. I faced it early on–let’s call it a “mindset problem.”

George Carlin summed this mindset problem when he said “Businessmen, when they negotiate a contract, assume that the other guy is out to fuck them over as hard as possible, so it’s their job to fuck him harder, faster, and deeper.” Newbies, when faced with contracts, often believe that Carlin’s satirical jibe is the literal truth, and they don’t like it.

I did this when I was a newbie with contracts, lo these many years ago. Why such an adversarial document to cement an agreement between parties who, presumably, want to enter a mutually beneficial arrangement? I got straightened out by a producer I worked for, who (in deference to my naiveté) was able to explain the reason WHY contracts must be explicit, pedantic, and nitpicky especially between friends/acquaintances/people seeking mutual benefit.

Since then, I’ve seen a lot of newbies fall into the same mental trap I did, so last year I did a blog post on why contracts must be written the way they are. In case it’ll help anyone here who’s experiencing some offputtedness by the cynicism on display, you can find it here:

Passive Guy, EXCELLENT post! And this piece of advice you give sums up so well exactly WHY the writer should be exacting about the contract negotiation (in a way that my literary lawyer is, but that my agents were not):

“read your publisher/agent contract with this question in your mind: “How does this work if I hate my publisher and my agent has stopped speaking to me?”…. [or]: “How does this work if my publisher gets purchased by a Chinese steel company and my agent is fired and replaced with somebody who is six months out of Wellesley and believes anime is the next big thing?”

Because situations like that arise regularly over the course of a writing career. So you’d better make sure your contract was based on solid negotiation, not a smile and a prayer.

LP, I am not a joiner, so I don’t belong, but I’ve heard good things about the service the Author’s Guild provides. I’m not familiar with the other link. But if someone else is…? Comments, anyone? Thanks for the links.

As an attorney who has negotiated many contracts (almost all outside the world of publishing), one of the most common mistakes people make is to assume that, once the contract is signed, the relationship will proceed in a way that will please everyone.

Whenever you read a potential contract, don’t assume that everything will go just fine. If the relationship with your publisher and agent is filled with bliss, nobody will ever look at the contract after it’s signed. The contract is for when something goes wrong.

Everybody loves one another when the contract is signed, but, as a student of human behavior, I will assure you that love sometimes fades and dies. Love can even turn to hate. As a useful exercise, read your publisher/agent contract with this question in your mind: “How does this work if I hate my publisher and my agent has stopped speaking to me?”

Because all things change, also read your contract with this question in your mind: “How does this work if my publisher gets purchased by a Chinese steel company and my agent is fired and replaced with somebody who is six months out of Wellesley and believes anime is the next big thing?”

An additional response to the question about why hiring an IP attorney is different than hiring an agent – An agent makes all of his money by making publishing contracts with a relatively small group of publishers. No publishing contract = no money.

An IP attorney earns her money from a wide range of clients and services. She doesn’t require signed contracts between publishers and authors that generate royalty revenue for her financial survival.

Additionally, to make specific what has been generally discussed, the IP attorney has an ethical obligation to represent her client’s interests and only her client’s interests. If she fails to do so, the client can file a complaint with the state bar association. I can assure you that an attorney takes the threat of a bar complaint very seriously. The bar can take away her license to practice law.

Thanks for all of that, Passive Guy. I hope you folks are reading these comments because they’re excellent–both his and Laura’s in particular.

I’ve always approached contracts from a worst case scenario point of view. Exactly what you said above, with one caveat. Often the worst case scenario is complete success. What happens if this book becomes a massive bestseller? What happens if the movie is the blockbuster of the season?

I recently saw a publishing contract from a reputable house in which the worst case scenario was a bestseller. Because the writer, who got a five-figure advance, wouldn’t see a dime of that bestselling money. Ever. And the writer signed the contract even after Dean & I explained this. The writer was afraid to lose the publishing deal. (sigh)

I’m curious about what you said about foreign rights, Kris. How are you selling them without an agent? I’ve heard a few people say that their foreign rights got better after they started working without an agent, but in those cases it usually ended up being because their publisher was selling their foreign rights for them, which doesn’t help indie authors.

Livia, I never (rarely) sold foreign rights to my publisher. It got harder the last few years to avoid that because of e-rights. But I retained them, so my agent(s) sold them. And my agents would negotiate a contract in which they remained on the contract and the contract was open-ended. Now I get contracts for a specific print run, with an option for renewal each time the publisher wants to print more books. We have to renegotiate which means I can say no to a worse deal and yes to a better one, if I want to.

As for marketing overseas, you can find foreign publishers on Publishers Marketplace and market to them yourself. I don’t usually bother. The foreign publishers come to me. Which is–I might add-not really that much different from what happened with my agent(s) who, except for one, never actively marketed my foreign rights. So I’m getting the same number of deals, better deals, and making the money directly rather than waiting for someone to pay me.

And since all of the agents who embezzled from me did so on foreign rights, I solved that problem as well. By the way, the latest embezzler was the agent in a particular country that my US agent had partnered with. My US agent refused to believe that this was happening. I didn’t care. I solved it by threatening to go directly to the publisher and asking why they never paid me. Suddenly I got paid–in full–the next day. And that agent, and the US agency, got fired.

This problem isn’t limited to writers. For example it’s fairly common for computer/technical contractors to sign contracts with non-compete clauses, even though in my state (California) non-compete clauses are unenforceable.

It has always baffled me why the basics of accounting, contract law, personal finance are not taught in High Schools. It’s almost guaranteed that the student will need that knowledge when they go into the workforce. Yet instead we teach them about the Teapot Dome scandal, Animal Farm and how to speak french, almost all of which goes over the students’ head. You’d almost have assume there is an intention to have people fail in life.

This is one of the best ‘Writer Beware’-articles I’ve ever read–and I keep an eye out for them. Thank you very much for sharing your experiences in the field of changing publishing, and especially for pointing out the new pitfalls.

Another key difference is that I have found my contracts are MUCH, MUCH better now that I use a lawyer. For several key reasons.

1. Lawyers specialize in contracts and legal language. The publishing house has lawyers with such expertise who WROTE the contracts and who advise, at their end, on the negotiations. When you, the writer, enter that negotiation with someone who is not ALSO a lawyer with that same level of expertise about contracts, contract law, publishing law, and legal language, you are at a disadvantage. I am no longer at that disadvantage since I started using a lawyer to negotiate my contracts.

2. Agents work on commission. Lawyers work on an hourly basis. An agent does not make ONE PENNY MORE for sitting at the negotiation table (so to speak) even an extra 20 minutes, let alone the extra days or weeks it might take to get every clause well-negotiated. For an agent, that’s just time spent (on something which, moreover, they’re not expert at–and, in many cases, not even particularly competent at) without earning income from that time. So they are often not motivated to be thorough and exacting in negotiations. By contrast, pursueing a negotiation until every i is dotted and every t is crossed and every advantage that can be secured for the writer in the contract has been advantaged… is exactly what a lawyer is PAID to do. That may sound expensive… but refer to my previous post; getting my contracts negotiated this thoroughly is actually costing me THOUSANDS of dollars LESS on every book I write than paying agency commissions was costing me. (Moreover, at any house, a laborious process is only necessary for the first negotiation. On your option deals, you’re starting–or should be–with the contract you’ve ALREADY negotiatded in previous deals. So negotiations are shorter and less expensive on subsequent deals with the same house. I recently negotiated an option deal, via my lawyer, wherein my legal fee was about 5% of what it had been on the first deal, because there was very, very little for her to do this time around, since we were using a contract we liked very much–the one we’d negotiated LAST time.)

3. The lawyer has no conflict of interest in the negotiation. It is very clear whose interests the lawyer is ethically obliged to serve in the negotiation: the client PAYING the hourly fee to the lawyer. (Moreover, if there IS a potential conflict of interest, a lawyer is required to decline to handle the deal, or to step down. Failure to do so can result in loss of license to practice.) With no conflict of interest, the lawyer is willing to stand firm in a tough negotiation. (Being paid an hourly fee to keep standing there is another reason the lawyer does so.) By contrast, agents are often RIDDLED with conflicts of interest in negotiations. They’ve got other clients at the house, they’ve got relationships at the house which they want to protect, etc… and this means they can be less than wholly committed to ONLY serving the interests of the writer in question during a negotiation. (Some familiar cues about this are when your agent uses phrases like, “Publishers don’t like it when…” and “Publishers don’t really want to…” and “They won’t agree to that…”, of course, the standby classic, “We’ll never get that, so I refuse to ask for it.”)

4. In my own experience of working with four agents, negotiations were always opaque. I never knew what was going on until I got the final contract. At which point, agents typically balked when I pointed out problems in it. By contrast, my experience of working with a literary lawyer is that negotiations are completely transparent. I am (at my lawyer’s insistence) copied on ALL correspondence and discussion in the negotiation. If there’s a phone call, then my lawyer writes a quick summary/memo of it in which I and the other party are both cc’d. I know everything that’s happening every step of the way, and my lawyer discusses each step with me, never accepting or rejecting anything on my behalf without FIRST getting my approval.

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